Marletta
Knowles appeals her convictions for the use of an
unauthorized access device in violation of 18 U.S.C. §
1029(a)(2) and aggravated identity theft in violation of
§ 1028A(a)(1). She argues that the district court abused
its discretion by excluding lay identification testimony from
a defense witness while admitting similar testimony from a
government witness. After reviewing the briefs and the
record, and with the benefit of oral argument, we agree with
Ms. Knowles that the district court erred. We conclude,
however, that the error was harmless because the defense
presented identification testimony from other witnesses.

I

On
February 25, 2015, North Miami Beach Detective Craig Caitlin,
accompanied by Department of Labor Special Agent William
Tippens (who was part of a task force investigating identity
theft and other crimes), stopped a Cadillac for having
illegally tinted windows. Camelin Desrosiers was driving the
Cadillac, and Ms. Knowles was a passenger. During the traffic
stop, Ms. Knowles was outside of the car and in view of Agent
Tippens for approximately 20 minutes.

A
records check revealed that Mr. Desrosiers was on probation
for a state fraud offense. After receiving his consent to
search the car, Detective Caitlin found four Publix money
orders-each in the amount of $500-and money order receipts in
the center console, along with $1, 000 in cash in a
compartment behind the radio. When asked about the money
orders, Ms. Knowles said that they were bought with cash.

Agent
Tippens later obtained the surveillance videos from the
Publix stores where the money orders were purchased. The
videos showed a woman enter each store and purchase the money
orders from customer service. The purchases depicted on the
videos matched the dates, times, and Publix store numbers
reflected on the money orders and money order receipts found
in the Cadillac. The money orders were purchased with prepaid
debit cards, which were obtained under the names and social
security numbers of two individuals whose identities had been
stolen.

Following
the investigation, a federal grand jury charged Ms. Knowles
with the use of unauthorized access devices and aggravated
identity theft. She pled not guilty and proceeded to trial.

A

Prior
to trial, Ms. Knowles moved in limine, under Federal
Rule of Evidence 701, to prohibit the government from
eliciting identification testimony from either Officer
Caitlin or Agent Tippens regarding the identity of the person
depicted in the Publix surveillance videos. Ms. Knowles also
gave notice of her intent to rely on the identification
testimony of Robert Wyman, a proposed defense expert who
would testify that, in his opinion, the person in the Publix
surveillance videos was not Ms. Knowles. Mr. Wyman based his
opinion on his two-hour interaction with Ms. Knowles (at
which time he took photographs of her at various angles); his
review of the videos, which he reduced to still frames; and
his comparison of the photographs that he took of Ms. Knowles
to the still frames from the videos.

The
government opposed Ms. Knowles' motion in
limine, arguing that the identification testimony of
Officer Caitlin and Agent Tippens would be helpful to the
jury because they were sufficiently familiar with Ms.
Knowles. Specifically, the government argued that Officer
Caitlin and Agent Tippens personally observed Ms. Knowles
during the traffic stop and compared those observations to
the person depicted in the Publix store videos. The
government also moved to exclude Mr. Wyman's testimony.
It argued that Mr. Wyman was not qualified to testify as
either an expert or a lay witness.

At a
pre-trial hearing, the district court denied Ms. Knowles'
motion in limine, finding that the officers'
identification testimony was admissible under Rule 701
because it would be helpful to the jury. The district court
stated that "[t]he length of time of the interaction
between Ms. Knowles and the officer[s] and the breadth of any
relationship certainly goes to the weight of the testimony as
opposed to its admissibility." D.E. 126 at 15. The
district court was satisfied that the officers personally
observed Ms. Knowles during the traffic stop and compared the
person depicted in the Publix store videos with their
personal observation of Ms. Knowles.

The
district court then addressed the government's motion to
exclude Mr. Wyman's identification testimony. Ms. Knowles
responded that Mr. Wyman should be permitted to testify as a
lay witness on the matter of identification under the same
circumstances as Agent Tippens: "[I]f . . . [Agent
Tippens] had only 20 to 30 minutes to observe Ms. Knowles on
the side of a road, while cars are passing by, and then
render an opinion as to the identity of Ms. Knowles, as
contained in the video, then Mr. Wyman should be able to do
the same thing after having an opportunity of several hours
to identify Ms. Knowles in a controlled setting." D.E.
126 at 109. The district court ruled that Mr. Wyman did not
qualify as an expert witness and denied Ms. Knowles'
request to admit ...

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